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An attorney is negligent if he accepts employment and causes the loss of opportunity to assert a claim for recovery.

Jenkins v. St. Paul Fire and Marine Ins. Co.,
422 So.2d 1109 (La. 1982)

Notice of Adverse Action

An Acclaimed Tulane Professor's Pursuit of Justice for Injury to Her Career was
Time-Barred as a Result of Attorney Negligence

Dr. Renee S. Hartz had practiced cardiothoracic surgery at the University of Illinois at Chicago College of Medicine, where she was Professor and Chair of the Section of Cardiothoracic Surgery, and at Northwestern University Medical School, where she was a tenured Professor.1  In 1997, she was recruited by Tulane and offered a position at the rank of Professor of Surgery with the assurance that "an application for tenure will be submitted when you arrive, with the full support of the Department of Surgery."  However, after a new Department Chairman was appointed, a hostile work environment ensued, fueled by the resentment of male colleagues who were jealous of her academic accomplishments.  Hartz was subsequently denied tenure.

Dr. Hartz filed a charge of sex discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC"), and in 2001, Tulane President Scott S. Cowen proposed a settlement agreement: an additional probationary appointment guaranteeing that Hartz would be considered for tenure during this probationary period.

Per that settlement agreement, Dr. Hartz was again considered for tenure in 2002.

Tulane Medical School's Personnel and Honors ("P & H") Committee is the duly constituted faculty body charged with the responsibility of deciding whether Tulane faculty should be awarded tenure.  The P & H Committee twice rendered a decision that Dr. Hartz was qualified for an award of tenure at Tulane, and it twice recommended that she be granted tenure.  Nevertheless, Tulane's Executive Faculty Committee ("EFC"), rejected the P & H Committee's recommendations to award her tenure. The EFC, despite its name, is not a faculty committee but is an administrative committee.

By letters dated June 21, 2002 and July 16, 2002, Tulane notified Dr. Hartz of the tenure denial decision.  These letters also reminded Hartz that, per the terms of the 2001 settlement agreement, the 2002-2003 academic year would be her terminal year at Tulane.

Dr. Hartz retained attorney Victor Farrugia on March 23, 2003, for $10,000 to represent her in her denial of tenure dispute with Tulane.  However, Mr. Farrugia allowed her Title VII claims to become time-barred when he failed to timely file and/or advise Hartz to timely file an EEOC charge.  Shortly after Hartz had retained Farrugia to represent her, she was unable to reach him, and on or about June 22, 2003—after the EEOC charge filing time-period had elapsed—Hartz engaged attorneys Robert A. Kutcher and Nicole Tygier of the law firm Chopin, Wagar, Richard, & Kutcher, LLP to assist her with her dispute with Tulane.

Mr. Kutcher and Ms. Tygier reviewed Tulane's notice of denial of tenure letters dated June 21, 2002 and July 16, 2002.

Dr. Hartz "made it very clear to them [Mr. Kutcher and Ms. Tygier] that I [Dr. Hartz] came to them because I could not find my counsel [Mr. Farrugia], so I couldn't get him, he hadn't been useful to me.  He hadn't been up-front with me, and so I went to them for their help in remedying the issue of having an attorney who was – I [asked] them to tell me what my options are, what are deadlines, what dates do I have to look forward to?"

The law firm told Dr. Hartz, "Farrugia is doing a fine job, just go back to him."  Dr. Hartz paid Kutcher and Tygier's law firm's bill of $3,065.19.

Hartz relied on Ms. Tygier's advice and returned to Mr. Farrugia for legal representation.  Following Farrugia's counsel, on August 22, 2003, Hartz filed a charge with the EEOC.  Her EEOC charge was filed more than 400 days after her notice of denial of tenure.  The charge was held in review by the EEOC until March 15, 2006, when the EEOC issued Hartz a "90-day right-to-sue" letter.

Dr. Hartz next contacted the American Association of University Professors ("AAUP") and asked them to recommend an attorney in New Orleans.  On May 31, 2006, upon AAUP's recommendation, Hartz contacted attorney Roger Phipps—three years after her EEOC charge should have been filed.  After reviewing Hartz's EEOC charge, which she sent to him on June 4, 2006, Phipps advised her that, in his opinion, her Title VII claims were time-barred under Delaware State College v. Ricks.2

Mr. Phipps also explained that the previous attorneys from whom she sought advice about her claims against Tulane University Medical Center had failed to inform her of the need to file a timely charge with the EEOC.  He explained that the failure to timely file an EEOC charge would probably result in dismissal of her claims as time-barred because Tulane would assert such a defense.  He also made clear that, on that procedural basis alone, her denial of tenure and her hostile work environment claims against Tulane University Medical Center would never receive consideration on their merits.

Hartz Failed to Timely File a Charge of Discrimination Even Though
She Had Attorney Representation
Days Elapsed Date Description
"0" July 16, 2002 Hartz receives second (and final) letter denying tenure.
250 March 23, 2003 Hartz engages Farrugia to represent her in her case against Tulane.
300 May 12, 2003 Last day to file a charge of discrimination with EEOC.
341 June 22, 2003 Hartz engages attorneys Kutcher and Tygier for assistance in her dispute with Tulane.
365 July 16, 2003 Last day to file a claim of discrimination under the state's anti-discrimination law, La. Rev. Stat. Section 23:301 et seq.*
402 August 22, 2003 Hartz files charge of discrimination with EEOC.
1,416 June 1, 2006 Hartz engages Phipps to represent her in her case against Tulane.
*Subsequent caselaw determined that Dr. Hartz could not have brought a state-law-based discrimination claim against Tulane, which was held to be exempt from coverage under the state anti-discrimination statute after Hartz filed her claim.  See Karcioglu v. Admin. of the Tulane Educ. Fund, No. 07-3352, Rec. Doc. 29 (ent. 9/12/07), cited in Hartz v. Farrugia, et al., Doc. 39, page 11.  See also La. Rev. Stat. Section 23:302(2)(b).

On June 8, 2006, Mr. Phipps filed Dr. Hartz's 06-2977 Complaint against Tulane and the Tulane University Hospital and Clinic ("TUHC").  On June 16, 2006, Phipps filed Hartz's 06-3164 Complaint against Victor Farrugia, Esq., and Robert Kutcher, Esq., Nicole Tygier, Esq., and Chopin, Wagar, Richard, and Kutcher, L.L.P., alleging legal malpractice.

Neither the first attorney, Victor Farrugia, nor the second set of attorneys to whom she turned for advice, Robert A. Kutcher, and Nicole Tygier of Chopin, Wagar, Richard, & Kutcher, LLP had informed Dr. Hartz of the critical 300-day EEOC charge filing requirement or when the 300-day clock began ticking.  Hartz's August 22, 2003, EEOC charge was filed more than 400 days after the last act of discrimination, and because of this untimely filing, she was ultimately denied all opportunity to challenge Tulane's discriminatory conduct in court and thus seek relief for her injuries.

Dr. Hartz's case against Tulane was assigned to the Hon. Jay C. Zainey, who recognized that Hartz's denial of tenure claim was time-barred.  The district court stated that, "the plaintiff has invoked the continuing violation doctrine in an effort to save her otherwise time-barred denial of tenure claim, [and] she will bear the burden of showing that she was unaware of the discriminatory conduct that was part of the pattern of discrimination at the summary judgment stage."3  The judge further stated that the denial of tenure might be "intertwined" with the hostile work environment claim.

On interlocutory appeal to the Fifth Circuit, Tulane and TUHC argued that Dr. Hartz's claims were time-barred.  At oral argument, the task fell to Mr. Phipps to argue that the district court's decision was correct, that Hartz's claims were not time-barred, and that the EEOC charge was timely.  Unpersuaded, and in disregard of Hartz's interests, the Fifth Circuit reversed the district court on the basis that it had failed to recognize that Hartz's EEOC charge had not been timely filed. Thus, the failure to file a timely EEOC charge resulted in Dr. Hartz's inability to defend her claims of Tulane's discriminatory conduct toward her in court.

The Fifth Circuit also chose to chastise Mr. Phipps in its written opinion.4,5  The Fifth Circuit apparently assumed that Phipps was responsible for Dr. Hartz's failure to timely file the EEOC charge.  Furthermore, its recitation of other cases, including that of Morgan,6 could not alter the untimeliness of the EEOC charge, which had been filed 400 days after the last discriminatory/retaliatory act.  That issue is governed by 42 U.S.C. Section 2000e-5(e) and the ability to count 300 days, a relatively straightforward task.

Once Dr. Hartz's suit against Tulane was dismissed by the appellate court, Judge Zainey considered Hartz's legal malpractice claims against Mr. Farrugia, Mr. Kutcher, and Ms. Tygier, and he dismissed Hartz's legal malpractice claims against those defendants.  In granting summary judgment in favor of Kutcher and Tygier, Judge Zainey stated that "nothing in the record" suggests that "[Mr. Kutcher or Ms. Tygier] agreed to counsel Dr. Hartz regarding the filing of an EEOC charge, an undertaking that likely would have led the Chopin defendants to discover that the filing deadline had lapsed, and therefore would have triggered a duty to inform Hartz about a potential malpractice claim against Farrugia."7

On appeal, Dr. Hartz argued that Judge Zainey focused on the lack of an engagement letter and construed that fact against Dr. Hartz rather than against Mr. Kutcher and Ms. Tygier.  Similarly, he construed the lack of a written contract against Hartz rather than Kutcher and Tygier.  Zainey also ignored the fact that Hartz's expert witness, Elizabeth A. Alston, Esq. testified that Kutcher and Tygier did not comply with the limiting of the scope of representation as required by Rule 1.2 of the Louisiana Rules of Professional Conduct.

In appealing the dismissal of her legal malpractice claims against Mr. Kutcher and Ms. Tygier, Dr. Hartz argued that, in addition to ignoring the evidence that she had raised an issue about the EEOC with Ms. Tygier, the District Court also ignored and/or misconstrued material facts concerning the following:

1) Hartz's deposition testimony;

2) Hartz's contemporaneous e-mails concerning Kutcher and Tygier's representation;

3) Inconsistencies in Kutcher and Tygier's Billing Statements and their Affidavits;

4) Kutcher and Tygier's admission in their Answer: "It is admitted that while plaintiff was continuing to be represented by defendant Victor Farrugia, plaintiff sought additional legal counsel from the law firm defendants concerning her dispute with Tulane";8

5) Hartz's testimony concerning her understanding of Kutcher and Tygier's representations, as corroborated by contemporaneous e-mails;

6) The lack of an engagement letter agreement;

7) Ms. Tygier's review and revision of a letter that discusses: a) time to file an EEOC charge, b) multiple uses of a letter to be sent to EEO,9 FTFR9 and EEOC, and c) the language concerning statutory remedies.

Oral arguments to Dr. Hartz's appeal were heard by the Appellate Court on January 4, 2010.

Oral Argument to the U.S. Court of Appeals for the Fifth Circuit, January 4, 2010,
Docket No. 09-30358, Appeal from Civil Action No. 06-3164, Hartz v. Farrugia et al.,
Edith H. Jones, Chief Judge, with Judges Jerry E. Smith and Jenifer Walker Elrod.

Roger D. Phipps for the plaintiff (15 min, 35 sec)

David S. Daly for the defendants (19 min, 59 sec)

Roger D. Phipps for the plaintiff, rebuttal (5 min, 10 sec)
Source: Oral Argument Recordings Page, United States Court of Appeals for the Fifth Circuit, http://www.ca5.uscourts.gov/OralArgumentRecordings.aspx?prid=69332, accessed 02/16/10.

The Fifth Circuit Court of Appeals affirmed the lower court's decision without reasons.10,11  Whereupon, Dr. Hartz filed a Petition for Writ of Certiorari to the United States Supreme Court asserting that, in affirming the district court's dismissal of her legal malpractice claims, the Fifth Circuit sanctioned such a departure from the accepted course of judicial proceedings by the District Court as to call for an exercise of the High Court's supervisory power.12

The Fifth Circuit displayed a cavalier disregard of Dr. Hartz's interests when it is the entity that is supposed to be "the great leveler" of all who come before it.

August 25, 2010
Revised: November 8, 2010


1. Renee S. Hartz, Curriculum Vitae.

2. Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980).

3. Civil Action No. 06-2977, Docket Item 29, Order and Reasons, 03/20/2007, p. 11.

4. Hartz v. Tulane et al., Opinion, Case No. 07-30506 (U.S. Ct. App., 5th Cir.) April 16, 2008.

5. See: Case Notes, infra.

6. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002).

7. Civil Action No. 06-3164, Docket Item 114, Order and Reasons, 03/31/2009, p. 14.

8. Civil Action No. 06-3164, Docket Item 13, Answer, 11/01/2006, par. 26.

9. EEO refers to Tulane's Equal Opportunity Office and/or its Officer, Ms. Mary Smith; FTFR refers to Tulane's Senate Faculty Tenure, Freedom & Responsibility Committee.

10. Hartz v. Farrugia et al., Opinion, Case No. 09-30358 (U.S. Ct. App., 5th Cir.) January 11, 2010.

11. Seven months after the Fifth Circuit rendered its opinion in favor of Chopin, Wagar, Richard, & Kutcher, LLP, a report was released by U.S. House impeachment managers that included an allegation that Mr. Richard Chopin of the Metairie law firm had been implicated for complicity in the alleged bribery of a federal judge.  See: Bruce Alpert, "Surprise witnesses planned in Senate; Judge faces impeachment trial," The Times-Picayune, New Orleans, August 21, 2010, National, p. 3.

12. U.S. Supreme Court, Case No. 09-1390, "Petition for Writ of Certiorari" and "Reply to Brief in Opposition."  Note: The U.S. Supreme Court denied the Petition for Certiorari on October 4, 2010.

Case Notes

In Hartz v. Tulane et al., the Fifth Circuit held that "the operative date from which the limitations period begins to run is the date of notice of the adverse action, not the date that the adverse action takes place," and it cited U.S. Supreme Court precedent in Delaware State College v. Ricks, 449 U.S. 250, 256 (1980), later afirmed in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S.Ct. 2162, 2168 (2007).  The Court concluded that, since Hartz's EEOC charge was filed about 100 days after the limitation period had expired, she was precluded from bringing a claim in federal court.4

The Fifth Circuit then turned an angry eye to Mr. Phipps, the attorney representing Hartz. In an extraordinary display of animosity, the Court seized upon an imprudent remark of Phipps' and proceeded to excoriate him for exhibiting "unprofessional conduct" and a "cavalier disregard" for his client's interests.4  The Court's gratuitous attack against an attorney who represented a victim of Tulane's duplicity seemed calculated to dissuade other plaintiffs' attorneys from filing employment discrimination lawsuits against the university.

Immediately, Tulane Law School's Professor Alan Childress trumpeted the Fifth Circuit's remarks about Phipps to the greater community of attorneys through his "Legal Profession Blog," deriding Phipps mercilessly and making him the object of scorn and ridicule.13  Apparently, it is not enough for Tulane to have the favor of the judges; it must also destroy the reputations of those who would file suit against the university.

Childress, who teaches a course on the "Legal Profession" at Tulane, excerpted a portion of the "unpublished" Fifth Circuit opinion in Hartz v. Tulane et al., which actually began with the preface that Phipps' conduct was "completely separate and apart from the issues raised on appeal."4

On his blog, Childress created the impression that Hartz's time-barred claims were dismissed because of Phipps.13  Yet, Hartz's claims had been time-barred more than three years before she ever contacted Phipps, and there was nothing that Phipps could argue, or were there cases to cite, that could change that fact.

With minimal inquiry, Childress could have discovered that Phipps had filed a legal malpractice action on behalf of Dr. Hartz against her former attorneys, Farrugia, Kutcher and Tygier, and the law firm of Chopin, Wagar, Richard and Kutcher, LLP.  Childress's conduct raises an issue about his own ethics and professionalism.  Perhaps he should make his own conduct the subject of the Legal Profession Blog of which he is co-author, and invite comment.

Endnotes, Cont.

13. Alan Childress, "Never Saw this Argument to the Fifth Circuit Before: 'I Try Not to Read that Many Cases, Your Honor'," Legal Profession Blog, April 17, 2008, http://lawprofessors.typepad.com/legal_profession/2008/04/i-have-never-se.html, accessed 10/06/09.

See also: Alan Childress, "Update, FWIW: Yes, the Talented Mr. Phipps Went to Loyola–N.O.," Legal Profession Blog, April 25, 2008, http://lawprofessors.typepad.com/legal_profession/2008/04/update-fwiw-y-1.html, accessed 10/06/09.

See also: Michael C. Smith, "'I try not to read that many cases, your Honor' – a case for the water cooler," EDTexweblog.com, April 30, 2008, http://mcsmith.blogs.com/eastern_district_of_texas/2008/04/i-try-not-to-re.html, accessed 08/03/10.

See also: EmploymentCrossing, "It's a Good Idea to Read the Case" [Video], http://www.youtube.com/watch?v=iLGIHZLcXdQ, accessed 09/22/10.


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